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“The book’s greatest strength lies in its stimulating and provocative examples. Read-
ers are treated to a host of insights from cognitive science, culture high and low, the
rough-and-tumble world of litigation, and the lofty perches of appellate advocacy and
judging.”
Ross Guberman, Author, Point Made: How to Write Like the
Nation’s Top Advocates and President, Legal Writing Pro

“Professors Berger and Stanchi have combined their respective interests in rhetori-
cal theory and cognitive science to produce an extremely engaging book about legal
persuasion. This volume will be immensely helpful to advocates, but it also provides
scholars with concrete examples that illuminate and advance deep insights.”
Francis J. Mootz III, Dean and Professor of Law,
McGeorge School of Law, University of the Pacific, USA

“Every law student, law teacher, attorney, judge, and – dare I say politician? – should
read Berger and Stanchi’s brilliant new synthesis of rhetorical theory and cognitive
science. Both accessible and sophisticated, its clear succinct explanations and examples
will help you think more clearly, advocate more effectively, and decide more wisely.”
Kate O’Neill, Professor Emeritus,
University of Washington School of Law, USA
LEGAL PERSUASION

This book develops a central theme: legal persuasion results from making and breaking
mental connections. This concept of making connections inspired the authors to take a rhe-
torical approach to the science of legal persuasion. That singular approach resulted in the
integration of research from cognitive science with classical and contemporary rhetorical
theory, and the application of these two disciplines to the real-life practice of persuasion. The
combination of rhetorical analysis and cognitive science yields a new way of seeing and under-
standing legal persuasion, one that promises theoretical and practical gains. The work has
three main functions. First, it brings together the leading models of persuasion from cognitive
science and rhetorical theory, blurring boundaries and leveraging connections between the
often-separate spheres of science and rhetoric. Second, it illustrates this persuasive synthesis
by working through concrete examples of persuasion, demonstrating how to apply this new
approach to the taking apart and the putting together of effective legal arguments. In this
way, the book demonstrates the advantages of a deeper and more nuanced understanding of
persuasion. Third, the volume assesses and explains why, how, and when certain persuasive
methods and techniques are more effective than others. The book is designed to appeal to
scholars in law, rhetoric, persuasion science, and psychology; to students learning the practice
of law; and to judges and practicing lawyers who engage in persuasion.

Linda Berger is the Family Foundation Professor of Law at the University of Nevada, Las
Vegas, William S. Boyd School of Law. Professor Berger has been a leader in building the
discipline of legal writing. Her recent scholarly work blends interdisciplinary study with rhe-
torical analysis, drawing on research findings from analogy, metaphor, and narrative studies
in order to examine the persuasiveness and effectiveness of written and oral communication.

Kathryn M. Stanchi is the Jack E. Feinberg ’57 Professor of Litigation and Affiliated Pro-
fessor of Gender, Sexuality and Women’s Studies at Temple University Beasley School of
Law. She is recognized as the leading scholar to bring persuasion science into the literature
of legal persuasion. Her scholarship often focuses on the intersection of persuasion, rheto-
ric, and feminism. She has published and lectured extensively on this and related topics.
Law, Language and Communication
Series Editors
Anne Wagner, Université du Littoral Côte d’Opale, France and
Vijay Kumar Bhatia, formerly of City University of Hong Kong

This series encourages innovative and integrated perspectives within and across the
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of communication in specialized socio-legal and professional contexts. It seeks to bring
together a range of diverse yet cumulative research traditions in order to identify and
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LEGAL PERSUASION
A Rhetorical Approach to the Science

Linda L. Berger and Kathryn M. Stanchi

First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 Linda L. Berger and Kathryn M. Stanchi
The right of Linda L. Berger and Kathryn M. Stanchi to be identified as authors
of this work has been asserted by them in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from the
publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identification and explanation without intent to
infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Berger, Linda L., author. | Stanchi, Kathryn M., author.
Title: Legal persuasion : a rhetorical approach to the science /
Linda L. Berger, Kathryn M. Stanchi.
Description: Abingdon, Oxon [UK] ; New York : Routledge, 2017. |
Series: Law, language and communication | Includes bibliographical
references and index.
Identifiers: LCCN 2017009322| ISBN 9781472464521 (hardback) |
ISBN 9781472464552 (pbk.)
Subjects: LCSH: Communication in law. | Semiotics (Law) |
Forensic oratory. | Persuasion (Rhetoric) | Law—Methodology. |
Law—Language.
Classification: LCC K213 .B43 2017 | DDC 340/.14—dc23
LC record available at https://lccn.loc.gov/2017009322
ISBN: 978-1-4724-6452-1 (hbk)
ISBN: 978-1-4724-6455-2 (pbk)
ISBN: 978-1-315-11299-2 (ebk)
Typeset in Galliard
by Apex CoVantage, LLC
Infinity icon © LovArt/Shutterstock
To lawyers who use rhetoric to pursue the possible. LLB
To Frank, who taught me so much about persuasion. KMS
CONTENTS

Preface xi
Acknowledgments xiii

PART I
Introduction 1

1 Making connections 3

2 Thinking and decision making: starting to persuade 12

PART II
Setting: audience, timing, and location 21

3 The judicial audience 23

4 Kairos: fitting time and place 31

PART III
Invention: stories, metaphors, and analogies 39

5 Uncover embedded plots, characters, and images 41

6 Introduction to storytelling 50

7 Telling fact stories differently 57

8 Developing law stories 72

x Contents

9 Making intuitive connections 80

10 Shape connections: familiar analogies and metaphors 84

11 Reinforce favorable connections: arguing by analogy 88

12 Break unfavorable connections: novel metaphors 96

PART IV
Arrangement: organization and connection 105

13 Introduction to priming: story and emotion 107

14 Priming interpretations and impressions 113

15 Introduction to syllogistic frameworks 123

16 Syllogistic and analogical case arguments 128

PART V
Connecting through tone 141

17 Structuring arguments to appear reasonable 143

18 Volunteering adverse information 149

19 The trap of attack 155

PART VI
Conclusion 159

20 Putting it together 161

Index 165
PREFACE

When we got together to write this book, we had in mind an overview of legal persua-
sion that combined our different areas of expertise. Kathy Stanchi has been writing for
years about the insights persuasion science provides for the thoughtful and deliberate
legal advocate. Linda Berger has been examining classical and contemporary rhetorical
theories and using rhetorical methods and rhetorical criticism to analyze lawyers’ argu-
ments, especially in written briefs and opinions. When we decided to write together,
we realized that although we had approached the subject of legal persuasion from
different directions, we had arrived at the same place: legal persuasion results from
making and breaking mental connections. We thought that a book exploring the rich
interdisciplinary potential of rhetoric and science would be a novel and useful approach
to persuasion and would have much to offer the practice and study of law.
In that sense, this book is a true collaboration. While we each took primary respon-
sibility for certain chapters that were within our specific areas of expertise, we both
made our marks on every part of this book. Both of us were pleasantly surprised at
the true synergy that our collaboration created when we considered and edited the
chapters outside our usual areas of expertise. We believe that synergy makes the book
a real integration of rhetorical theory and science. Thus, the order of authors reflects
the alphabetical order of the letters of our last name. For better or worse, every part of
this book is truly both of ours.
Our initial approach was to chart a middle course that included a strong founda-
tion in the theory of persuasion but also a true grounding in the practical. The book’s
organization reflects this approach in that each chapter takes the time to explain and
describe the theory and also includes case studies as examples of the theory as applied.
As legal writing professors, we know that a firm grounding in theory is essential to the
ability to make advocacy decisions in the wide diversity of contexts that confront the
legal advocate. As much as practicing lawyers like to disclaim theory, they use it every
day. As just one example, virtually every litigator will tell you that they start their case
planning with a “theory of the case” that is meant to guide their strategic decision
making throughout the litigation. Persuasion theory works similarly; it is an overarch-
ing set of principles that lawyers can translate into practical strategic decisions. This
book is meant to help with that translation, both by bringing together in one source
xii Preface

some of the leading persuasion theories and by showing how those theories have been
used by legal advocates in past cases.
Our idea to combine theory with practice, however, presented the problem of audi-
ence. Who is the intended audience of the book? Practicing lawyers? Law professors?
Students? We thought that those groups, and members of the public in general, would
be interested in how persuasion works in legal settings. As we wrote, we recognized
that we were writing to all these different audiences. That broad target for the book
presented some tone and communication issues – speaking simultaneously to law pro-
fessors, practicing lawyers, and students was often a tightrope walk for us. We very
much did not want to “dumb down” the theory, but we did want it to be under-
standable to everyone in our audience. We often erred on the side of simplifying, but
sometimes we included complex theoretical details because of a desire for thorough-
ness or accuracy. We recognize that in attempting to walk this tightrope of audience,
we might have occasionally missed the mark.
But if nothing else, the premise of this book is that lawyers should be thinking about
theory, and theoreticians should be thinking about the practical, and everybody should
be thinking about how to educate the next generation. We believed that the hiccups
resulting from our wish to follow this integrated approach were worth it to break new
interdisciplinary ground for legal advocacy. We hope the result is challenging, useful,
informative, and interesting.
ACKNOWLEDGMENTS

Everything we do starts with our students, and so we start by thanking our students for
helping us explore, develop, and test the concepts in this book. Their understanding,
responses, challenges, and feedback have been invaluable.
We owe special thanks to the careful and hard-working research assistants who
helped us find useful examples in lawyers’ briefs, judicial opinions, and many other
sources, including Brent Resh, Tam Tran, Michael Ahlert, Dina Kopansky, and Sara
Mohammed. Sabrina Mercado, Jasmine Greene and Shauna Pierson provided editing
assistance at the final stages. We are especially grateful to Brent Resh for organizing and
preparing the chapter bibliographies.
Among our colleagues, Amy Sloan was the first to encourage us to view this book as
primarily a work of scholarship, and we thank her for that encouragement. We gained
many valuable insights and helpful suggestions from Amy and the other reviewers of
the initial proposal: Laura Little, Greg Mandel, Ann McGinley, Richard K. Neumann
Jr., and Jean Sternlight. We received consistent and very welcome support from our
law librarians, our deans, and our law schools, UNLV’s Boyd School of Law and Tem-
ple’s Beasley School of Law.
The University of Washington’s Whiteley Center at Friday Harbor in the San Juan
Islands provided a serene and beautiful setting at a critical moment in the writing of
the book: our appreciation to the Whiteley Center and to Tom Cobb and Kate O’Neill
for suggesting that we apply for a writing retreat there.
Finally, to our colleagues at our own law schools and across the country, our friends,
and our family members who put up with our talking about this book for more than
four years: we are grateful for you and feel very fortunate to have you in our lives.
PART I

Introduction
1
MAKING CONNECTIONS

Making connections is the critical concept that unites persuasion science with rhetori-
cal theory and the real-life practice of persuasion. Connections are critical because most
things in life are ambiguous: what we read, hear, and see is open to interpretation. When
we sit in a restaurant and a person with a pad and pencil approaches us, we expect that he
wants to take our order rather than wanting to interview us, take a bet on a horse race, or
draw our picture. (Winter 2003). Our expectation is based on the connections our brain
made between the individual we observed and the setting, the timing, the individual’s
dress, our past experiences, and a host of other factors. When the same waiter asks us if
we want to hear what’s fresh, we expect him to describe today’s best offerings from the
menu rather than the air, the water, or the flowers. Our scripts for eating in a restaurant,
acquired through experience, set up our usual expectations.
Still, because both words and observations hold out the potential for alternatives
to be considered, they are open to interpretation, and that openness makes persuasion
possible. Sometimes the advocate will want the decision maker to assume that the
person with the pad and pencil is a waiter, but sometimes lawyers must persuade us
that our initial view, our first impression, is mistaken or incomplete. By attempting to
influence the decision maker to keep searching for clues, or to go back to search for
alternative scenarios, lawyers can influence their audiences to make certain mental con-
nections and to turn away from others.
In the chapters that follow, we explain and illustrate how lawyers can make the
right choices to influence connections. For example, we explore the reasons why law-
yers might decide to use one rather than another metaphor or analogy as well as how
lawyers should select an especially appropriate storyline or characterization, fit their
arguments into a comfortable organizational structure, or choose specific words and
phrases for particular purposes.
To persuade an audience member is to help her connect the pieces of the puzzle in
order to see a particular picture. If, for example, a lawyer wishes to argue that driving
while intoxicated is a “violent felony,” the lawyer may initially confront a problem
4 Introduction

of “connection.”1 People have schema or stock images of what a “violent felony” is,
and for most of us, those schemas do not include drunk driving. The lawyer’s job is
to lead the reader to connect the “violent” results of drunk driving with the relatively
passive action of driving a vehicle. The lawyer must also weaken the associations the
reader may have between “violent felony” and stereotypical violent crimes such as
assault or murder.
As this example shows, the connections in our minds are formed by common cultural
understandings as well as by our personal experiences. Many of our cultural under-
standings and personal experiences have been with us for a long time, and they are well
settled in our minds. For most situations, we must choose from among a number of
possible connections stored in memory. If the advocate is to succeed in reinforcing the
more favorable connections and in severing the less favorable ones, she must engage in
advocacy that is vivid and memorable enough to replace the lived experience.
It is easy to say that persuasive advocacy should function as a virtual lived experi-
ence for the reader. But how can the advocate guide the reader so that the experience
unfolds in that way? That is the question this book seeks to answer.
The advocate’s first job is to make connections with the members of her audience.
Both persuasion science and rhetorical theory suggest that one thing will in fact lead
to another: agreement on premises will lead to agreement on conclusions; agreement
on a first, small step will encourage agreement on later, bigger ones. Thus, when legal
persuasion is effective, an initial link, a recognized commonality, will lead to a series of
subsequent connections: between individuals and categories, legal problems and their
settings, argument opportunities and timing, initial arguments and next steps, turning
points and resolutions. Even breaking connections depends on making connections.
To sever connections, the advocate guides audience members to see alternative cues
that link the current situation with perspective-shifting images, stories, or analogies.
The cognitive science view of thinking lends itself to the idea that we see, inter-
pret, and talk about new information and concepts through the filters and frames we
have already constructed, that we go through a process of comparing new things to
the things we already know: What is this like? Into what category does it fit? Is it so
unusual that we need to create a new category? After we compare, we argue about
the comparisons, either with ourselves or with others: Is this new thing more like this
option or more like that one? How is it like this? How is it like that? What difference
does our choice make?
The purpose of the book is not only to explore how persuasion works, but also and
more practically to examine how to construct legal arguments that will effectively con-
nect with particular audiences in specific situations. By taking a rhetorical approach to
persuasion, we have integrated research findings from cognitive science with classical
and contemporary rhetorical theory, and we have then applied both to the taking apart
and the putting together of effective legal arguments. The combination of rhetorical
analysis and cognitive science yields a new way of seeing and understanding legal per-
suasion, one that promises theoretical and practical benefits.

1 This example is taken from a Supreme Court case, Begay v. United States, 553 U.S. 137 (2008).
 Making connections 5

First, the book brings together the leading models of persuasion from cognitive
science and rhetorical theory. In the process, it blurs the boundaries and leverages the
connections between the often-separate spheres of science and rhetoric. Second, the
book illustrates persuasive synthesis by working through concrete examples of persua-
sion from real-life legal contexts. Finally, the book assesses and explains why, how, and
when certain persuasive methods and techniques are more effective than others. This
assessment and explanation is based not only on our study of rhetorical concepts and
persuasion research but also on our testing of what we have found by working through
in-depth analyses of actual legal arguments.

The rhetorical approach

Many of the commonplace strategies and techniques used by today’s legal advocates
derive from Aristotle’s Rhetoric. First, of course, Aristotle described the well-known
modes for inventing persuasive arguments: ethos, logos, pathos, and kairos. (Corbett
and Connors 1998). As a mode of invention, ethos suggests that the advocate consider
arguments based on the knowledge, experience, credibility, integrity, or trustworthi-
ness of the speaker. Ethos may emerge from the character of the advocate herself, from
the character of another actor within the argument, or from the sources used in the
argument.
Pathos suggests arguments based on building common ground between listener and
speaker, or listener and third-party actor. Common ground may emerge from shared
emotions, values, beliefs, ideologies, or anything else of substance. Logos suggests argu-
ments based on the syllogism or the syllogistic form, including arguments based on
enthymemes and analogous cases. As we will discuss later in the book, more flexible
argument frames based on metaphor, analogy, and story also draw on the persuasive
power of packaging, that is, the audience’s inclination to accept an argument that is
delivered in a familiar and recognizable organizational package. Kairos suggests that
the advocate constructing arguments take into account the appropriateness of timing
and setting. For example, the “right moment” for an argument is when social condi-
tions make the argument compelling despite its lack of precedential support, as in the
Brown v. Board of Education (1954) decision that separate but equal schools are inher-
ently unequal.
In addition to these modes of invention centered on different kinds of persua-
sive appeals, Aristotle categorized a still-helpful laundry list of topics for argument.
Applying the “topoi,” or the step-by-step process of invention outlined by classical
rhetoricians, can be helpful to advocates when they are reading an opinion to exam-
ine how the arguments were constructed or generating arguments in support of a
given position. As Aristotle pointed out, some topics for argument are inevitable
in certain situations. In legal reasoning, advocates know in advance that they must
make certain moves: arguing that a particular situation falls within the language of a
statute or rule (plain meaning or legislative intent), that this situation is analogous
or distinguishable on the facts or the reasoning from a precedent case, or that apply-
ing the rule to this situation would further or undermine the policies underlying
the rule.
6 Introduction

In classical rhetoric, once arguments had been invented, selected, and arranged, the
writer or speaker selected a fitting “style” and put them into words. (More contem-
porary rhetoricians view the whole question of word choices and writing style as an
integral part of the blended construction of persuasive arguments.) Classical rhetori-
cians identified a number of figures of speech, including schemes and tropes. Schemes
are a deviation from the ordinary pattern of words, and tropes are a deviation from
the ordinary meaning of a word. Many of these style techniques are used to comple-
ment and implicitly support other persuasive approaches. For example, the schemes
of balance, such as parallelism and antithesis, draw on some of the same psychological
influences as priming and syllogistic organization while schemes of unusual or inverted
word order, such as anastrophe (inversion of the natural or usual word order), paren-
thesis, and apposition may contribute to arguments designed to break connections
with the status quo.
As for contemporary rhetoric, a grasp of each individual rhetorical situation gives
the advocate a way to analyze the opposing arguments and the underlying precedent
that is essential to crafting responsive arguments. (Bitzer 1968). The key to rhetorical
situation analysis is to precisely identify the trigger or the prompt for the advocacy.
Different prompts evoke different audiences and impose different constraints on the
rhetorical response. In Bitzer’s term, a rhetorical situation is marked by an imperfec-
tion or problem that encourages the speaker or writer to construct an appropriate
argument designed to persuade the relevant audience, that is, an audience with the
ability to resolve the problem. For example, in Walker v. City of Birmingham (1967),
the lawsuit that challenged an injunction against the 1963 Easter civil rights march in
Birmingham, Alabama, the justices had very different views of the “imperfection” that
called for a rhetorical response.
In Walker, Birmingham had denied a parade permit to the civil rights marchers,
including the Rev. Dr. Martin Luther King, and then the city obtained an injunction
forbidding the marchers from proceeding without a permit. The marchers violated the
injunction by marching anyway and were arrested. The Supreme Court was asked to
decide that the injunction violated the Constitution. For Justice Stewart, the problem
was the marchers’ disobedience of an injunction; for Justice Brennan, the problem was
the unconstitutional city ordinance under which the injunction was issued. Thus, Jus-
tice Stewart described one incident that occurred during the Easter Sunday civil rights
march as menacing: “Some 300 or 400 people from among the onlookers followed in
a crowd that occupied the entire width of the street and overflowed onto the sidewalks.
Violence occurred.” (Walker 1967). Justice Brennan characterized the same incident
as much less disruptive: “The participants in both parades were in every way orderly;
the only episode of violence, according to a police inspector, was rock throwing by
three onlookers.” (Walker 1967).
At the core of most modern rhetorical theories of persuasion is Kenneth Burke’s
concept of identification. (Burke 1969). In Burke’s concept, identification is both lit-
eral and figurative, the sharing of something of substance between speaker and listener.
Burke suggested that individuals form their identities through physical objects, work,
family, friends, activities, beliefs, and values; they mentally share “substance” with the
people and the things with whom they associate; and they mentally separate them-
selves from other people and things. The shared substances forge identification, and
 Making connections 7

persuasion results: “You persuade a man only insofar as you can talk his language by
speech, gesture, tonality, order, image, attitude, idea, identifying your ways with his.”
(Burke 1969). According to Burke, identification can work in several ways: as a means
to an end (we have the same interests); through antithesis (we have the same enemies);
and through identification at an unconscious level (we have the same unspoken values).
When it comes to what the classical rhetoricians referred to as style, we assume that
the lawyer’s writing style, word choices, tone, and mechanics will be designed to meet
the needs of her audience and situation. Persuasive arguments will be accurate enough
not to mislead (though often depicted from a particular perspective); they will be as
brief (or as extended) and as clear (or as nuanced) as fits the audience, situation, and
purpose. We also assume that “readability” matters, that is, that all other things being
equal, the brief that is more easily read and understood, that helps the reader see where
the writer is going, and that keeps the reader on track will be more effective than briefs
that are hard to understand. Research mostly backs up this assumption. (Spencer and
Feldman 2016). And this assumption makes sense from both rhetorical and persuasion
science vantage points. Readability enhances the speaker’s credibility (ethos), speaks to
the listener’s values and interests (pathos), and contributes to our intuitive sense that
an argument is logical and valid (logos) because it hangs together.

The science of persuasion

Scientific research into persuasion and human decision making spans a number of fields,
and the findings that support much of the guidance provided in this book emerge from
cognitive and social psychology. Psychological studies of judicial and juror decision
making have proliferated over the last two decades, but little of the persuasion science
research has specifically addressed legal persuasion or legal audiences. Nonetheless,
the findings provide guidance that helps advocates make more thoughtful decisions
under differing circumstances. In addition to better understanding the communication
process that leads to persuasion, the science of persuasion has provided concepts and
labels that will allow us in this book to identify specific approaches and techniques and
to illustrate their use in particular legal documents. (Stanchi 2006).
Contemporary persuasion science has been traced to the studies undertaken by psy-
chologist Carl Hovland when President Franklin D. Roosevelt asked him during World
War II to study how to effectively persuade soldiers to engage in continuing battle.
(Hovland et al. 1953). The following decades of research led to Richard Petty and
John Cacioppo producing an integrated model of persuasion. This model was used
to describe how likely it was that audience members would deliberate and reflect on
various arguments presented to them. In the Elaboration Likelihood Model (ELM),
the thinking involved in decision making was ranked somewhere along a continuum
from deep thinking to little active thought. The central route to persuasion – linked
to important issues highly relevant to the audience member – required the audience
member to carefully consider the information provided, clarify the arguments on both
sides, and then make a deliberate and informed choice. On the peripheral route to
persuasion, on the other hand, audience members were influenced by more super-
ficial cues (font style, grammar errors, the likeability of the advocate) that produced
changes in beliefs and attitudes without the audience member having gone through
8 Introduction

a recognizably deliberative or reflective process. (Petty and Cacioppo 1986a, 1986b).

The influence of this model of thinking can be seen most notably in Daniel Kahne-
man’s delineation between the decision-making processes he labels as System 1 (fast
and intuitive) and System 2 (slower and more reflective). (Kahneman 2011).
Although the extent to which an audience may be open to persuasion depends on
the surrounding context, including how much the audience member cares about the
issue, there are a number of offsetting considerations. These factors affect whether the
audience member will deliberate carefully or whether she will use a decision-making
shortcut. (Reilly 2013). Audiences in general, and judges in particular, simply may not
have enough time to carefully deliberate. And in life as well as judging, there are non-
obvious shortcuts, including reliance on the judgment of others around the decision
maker. (Cialdini 2006; Mullins 2014).
In addition to identifying the so-called central and peripheral routes to persuasion,
persuasion scientists described a tug of war between the speaker’s overtures of per-
suasion and the audience’s response of resistance. Various techniques were described
that would affect the audience member’s motivation and thus increase or lessen her
resistance to a particular message. For example, the inoculation technique proposed to
inject audience members with a weakened version of the opposing arguments in order
to stimulate longer-term resistance to those arguments by in effect preempting the
attacks. (McGuire 1964).
Cognitive scientists also revealed that all decision making is affected by a range
of unconscious cognitive biases, mostly reflecting the mind’s tendency to make the
quick-and-easy connection. Along with his long-time research partner Amos Tversky,
Kahneman was a pioneer in exploring these biases, notably including such framing
effects as loss aversion (the preference for avoiding loss as opposed to acquiring gains)
and the representativeness heuristic (the tendency to judge the likelihood of some-
thing based on what we think is a “typical” case). Cognitive bias is one area in which
legal scholars have begun to pay attention to the methods and findings of psychology,
thanks in large part to the work of Jeff Rachlinski, who has published a series of impor-
tant and informative articles examining whether judges are susceptible to the same
cognitive biases as layperson decision makers. (Guthrie et al. 2001, 2007).
Finally, any description of the most influential findings of modern persuasion sci-
ence would include the tools identified by Robert Cialdini based on his own extensive
fieldwork. (Cialdini 2006). Most often applied to negotiation, these tools are of sig-
nificant use to written advocacy as well. For example, the concept of persuading others
through the use of reciprocity can be seen when advocates make concessions that ease
the way toward identifying the more important issues and arguments. Cialdini’s find-
ing that audiences are influenced by commitment and consistency can be seen in the
argumentation techniques that begin in small agreement and build in steps to eventu-
ally reach broader agreement. Similarly, the concern for consistency is illustrated in
studies indicating that polling jury members in public while they are deliberating may
result in their being less willing to change their positions, a result that may mean more
hung juries over time. (Mullins 2014).
Some caution is necessary in applying the methods and findings of persuasion
science to legal persuasion and decision making. As already mentioned, few of the
persuasion studies addressed legal decision making or explored the ramifications of
 Making connections 9

applying to lawyers or judges the lessons learned from research studies in which other
kinds of audiences were tested. (Stanchi 2006). Moreover, legal audiences may react
differently to persuasive messages than other audiences do. Lawyers and judges are
often thought to be most comfortable with traditional approaches to legal reasoning
and argumentation. And this might suggest that the legal audience is more likely to
be persuaded by conventional techniques than by approaches that challenge or deviate
from tradition. (Stanchi 2006).

A note about audience

Throughout this introduction, and throughout the book, we refer to “audience” and
the importance of connecting with “audience.” To write a coherent account of persua-
sion, we had to consider the legal audience collectively and somewhat monolithically
even though the audience for legal advocacy can of course vary widely. We tackle the
judicial audience (as opposed to the non-law-trained audience) in Chapter 3, because
we believe that law training can affect a person’s view of what is persuasive. But the
book does not venture beyond the distinction between law-trained and non-law-
trained. How an administrative judge reacts to an argument may be very different from
how a legislative aide reacts to a lobbying attempt, and different federal or state judges
on the same court can react quite differently to different arguments depending on a
whole host of diverse characteristics ranging from age, gender, and race to personal
experience and beyond.
That said, we believe that there are significant commonalities in the way that human
beings respond to advocacy and that it is possible to generalize about what “works”
to persuade and what does not. If we didn’t believe that, we couldn’t have written a
book! We believe that the principles explored in this book can be used to inform legal
advocacy of all kinds, before all manner of legal audiences, both law trained and not.
As always, the advocate must be judicious and careful about choosing tactics, as not all
tactics will be effective with all audiences. But an overarching goal of this book is to
help advocates choose more wisely by explaining in more depth why some tactics are
effective and others not. This will help the advocate choose among tactics, regardless
of the particular legal audience the advocate is facing.
We acknowledge that most of our examples – though not all – come from writ-
ten briefs, and mostly appellate briefs, which means that most of the examples are
focused on the law-trained audience. But we stress that the book is meant for lawyers
of all stripes – appellate lawyers, trial lawyers, transactional, and beyond. Our choice
of examples is largely due to availability and accessibility – appellate briefs are widely
published and the cases tend to be well known. Trial transcripts, administrative briefs,
and other legal documents are a bit more difficult to come by. And trial tactics are
quite a bit more difficult to excerpt effectively as compared with written advocacy. In
our view, it is easier for a reader to see an example pulled from a discrete paragraph in
a brief: with only a short explanation, the reader can see the use of the tactic in that
discrete paragraph without having to read the entire document. This is harder to do
with a trial transcript, even an opening or closing argument, because so often the tac-
tics are interwoven with the “big picture” of the trial in a way that makes them difficult
to sever without losing meaning.
10 Introduction

That is all to say that although the book is meant to be a general primer on legal persua-
sion, we recognize that not all of the tactics will be usable in all contexts or with all audiences.
We acknowledge that as part of the rich study of persuasion. We trust our readers to use the
deeper explanations and rationales we provide to generalize from the examples. We hope that
by combining examples with deep explanation of the reasons the tactics work, we will give
advocates the information they need to make their own, fully informed choices about when
to use the tactics and before which audiences to employ them.

How the book is organized

Because it provides the basis for our conclusion that making connections is the crux of
persuasion, the book begins with a short overview of thinking and decision making,
drawing on a blended version of cognitive science and rhetoric. From there, we address
the setting for legal persuasion, going into some detail about what studies have found
to be characteristic of the judicial audience in particular. To understand the setting for
persuasion, the advocate must also explore other aspects of the context for specific legal
arguments, including the complexities of matching an individual argument to the right
time and place.
Following the rhetorical roadmap, we move next to the process of constructing
arguments, or what classical rhetoricians called invention. The chapters clustered
together in this section first explore how analysis can uncover pre-existing stories, ste-
reotypes, and images that affect decision makers. The chapters in this section then
move to the process of creating effective fact and law stories as well as metaphors and
factual analogies.
In the next cluster, we consider what the classical rhetoricians called “arrangement”
or the techniques of persuasion that are based on order and on making connections
among parts of arguments, first priming, and then syllogisms and case analogies.
The final cluster considers the ways in which the tone of our arguments can affect
persuasion.

Cases & briefs

Begay v. United States, 553 U.S. 137 (2008).
Brown v. Board of Education, 347 U.S. 483 (1954).
Walker v. City of Birmingham, 388 U.S. 307 (1968).

Bibliography
Bitzer, L.F., 1968, ‘The Rhetorical Situation’, Philosophy and Rhetoric, 1, 1–14.
Burke, K., 1969, A Rhetoric of Motives, rev. edn., University of California Press, Los Angeles.
Cialdini, R.B., 2006, Influence: The Psychology of Persuasion, rev. edn., Harper Business, New
York.
Corbett, E.P.J. and Connors, R.J., 1998, Classical Rhetoric for the Modern Student, 4th edn.,
Oxford University Press, Oxford.
Frost, M., 1990, ‘Brief Rhetoric – A Note on Classical and Modern Theories of Forensic Dis-
course’, Kansas Law Review, 38, 411–431.
 Making connections 11

Guthrie, C., Rachlinski, J.J. and Wistrich, A.J., 2001, ‘Inside the Judicial Mind’, Cornell Law
Review, 86, 777–830.
Guthrie, C., Rachlinski, J.J. and Wistrich, A.J., 2007, ‘Blinking on the Bench: How Judges
Decide Cases’, Cornell Law Review, 93, 1–44.
Hovland, C.I., Janis, I.L. and Kelly, H.H., 1953, Communication and Persuasion: Psychological
Studies of Opinion Change, 1st edn., Yale University Press, New Haven.
Kahneman, D., 2011, Thinking, Fast and Slow, Farrar, Straus and Giroux, New York.
McGuire, W. J., 1964, ‘Inducing Resistance to Persuasion: Some Contemporary Approaches’,
in L. Berkowitz (ed.), Advances in Experimental Psychology, vol. 1, pp. 191–229, Academic
Press, New York.
Mullins, A.E., 2014, ‘Subtly Selling the System: Where Psychological Influence Tactics Lurk in
Judicial Writing’, University of Richmond Law Review, 48, 1111–1156.
Petty, R.E. and Cacioppo, J.T., 1986a, ‘The Elaboration Likelihood Model of Persuasion’, in
L. Berkowitz (ed.), Advances in Experimental Social Psychology, vol. 19, pp. 124–207, Aca-
demic Press, New York.
Petty, R.E. and Cacioppo, J.T., 1986b, Communication and Persuasion: Central and Peripheral
Routes to Attitude Change, Springer, New York.
Reilly, P., 2013, ‘Resistance Is Not Futile: Harnessing the Power of Counter-Offensive Tactics
in Legal Persuasion’, Hastings Law Journal, 28, 1171–1228.
Spencer, S.B. and Feldman, A., 2016, ‘The Relationship Between Brief Clarity and Summary
Judgment Decisions’, viewed 18 October 2016, from https://ssrn.com/abstract=2807045
Stanchi, K.M., 2006, ‘The Science of Persuasion: An Initial Exploration’, Michigan State Law
Review, 2006(2), 412–456.
Winter, Steven L., 2003, A Clearing in the Forest: Law, Life, and Mind, University of Chicago
Press, Chicago, IL.
2
THINKING AND DECISION MAKING
Starting to persuade

Even the best plan rarely survives “contact with the enemy.” (Heath and Heath 2007).
Taking such real-life lessons into account, this book meshes planning with action,
persuasion science with rhetorical experience. Think about how Google’s mapping
application tells you the shortest route from point A to point B. Remember that the
plan does you little good when the Memorial Day parade overwhelms ordinary traffic
patterns and turns all the busy streets in your neighborhood into one-way thorough-
fares. In traffic, as in legal persuasion, the chances of navigating successfully are boosted
when you can draw on a combination of science and experience.

How we think

Thinking as chunking
Because of their role in thinking and decision making, storytelling, metaphor-making,
and analogizing form the core of communication. This is aptly illustrated in cognitive
science’s depiction of the mind in the statement that the mind is a computer and the
resulting inferential leap that thinking is akin to information processing. Even though
we understand that the metaphor is not literally true, its widespread use for decades has
come to affect and even govern our ability to think about thinking.
According to researchers in the cognitive sciences, we learn by constructing men-
tal images and frameworks over time, then by calling up from memory those that
are most accessible or those that seem most comparable whenever we encounter new
information. Thinking thus becomes primarily a process of comparison: we see and we
understand new data by making connections between what we encounter in the world
and the knowledge structures that exist in our memory. (Hofstadter 2001; Gentner
et al. 2001).
From this perspective, the critical step in thinking is our ability and propensity to
recognize patterns – in other words, to make connections. As we learn, we sort and
“chunk” new information into schemas or knowledge structures that we embed in
 Thinking and decision making 13

memory. Once we have built up these memory banks, we search through them when-
ever we confront new information, looking for the knowledge structures (or categories)
that will help us perceive and interpret what we’ve seen. Our often-unconscious choice
of which category is the best match affects our view of the new information; it “filters”
what we see and “frames” the way that we understand it.
When we encounter new information in the world, why do we “chunk” pieces
together and then slot them into preexisting categories in our minds? In a short story
by Jorge Luis Borges, the protagonist, Funes, remembered every detail, “not only
every leaf of every tree of every wood, but also every one of the times he had perceived
or imagined it.” To manage this torrent of memories, Funes “decided to reduce each
of his past days to some seventy thousand memories, which would then be defined by
means of ciphers.” He changed his mind when he realized that the project would be
both interminable and useless. Although Funes was only nineteen, “by the hour of his
death he would not even have finished classifying all the memories of his childhood.”
(Borges 2001).
Chunking – putting things into categories – helps make understanding possible.
In his focus on the details, Funes could not understand that a category such as dog
included many different individual animals and that a dog who looked different from
one side would fall into the same category as the same dog seen from the front. As
Borges wrote, “To think is to forget differences, generalize, make abstractions. In the
teeming world of Funes, there were only details.” (Borges 2001).
This ability to think generally and abstractly in order to construct categories is also
necessary to memory. Douglas Hofstadter concluded that babies do not remember
events because they are not yet far enough along in the “relentless, lifelong process
of chunking.” Without a “repertoire of concepts” in their minds, babies “look at life
through a randomly drifting keyhole,” able to make out only the smallest and nearest
aspects of what they see before them. (Hofstadter 2001).
This view of cognition assumes that people naturally and intuitively reflect about
what has happened to them in the past. Based on their reflection, they construct
stories and frameworks out of the details of their lives and the world. As we grow
older, our frameworks become more nuanced and sophisticated. Because incom-
ing stimuli rarely fit exactly a mental category that already exists, more advanced
chunks become necessary. When we recognize that the new information does
not fully match a prior category, we try to pick out new patterns, often forming
additional abstract concepts. As it became clear, for example, that violent abuse
involving personal relationships occurred not only in marriages and not only when
the husband was the abuser and the wife was the victim, the category of intimate
partner violence came to replace the former category of domestic violence, which
itself had replaced even older concepts such as wife battering. Category construc-
tion and abstract thinking thus grow out of our ability to analogize, or to engage
in what Hofstadter terms:

the mental mapping onto each other of two entities – one old and sound asleep
in the recesses of long-term memory, the other new and gaily dancing on the
mind’s center stage – that in fact differ from each other in a myriad of ways.
(Hofstadter 2001)
14 Introduction

Thinking as arguing
Aristotle defined rhetoric as “an ability, in each particular case, to see the available
means of persuasion.” (Kennedy 1991). This conception of rhetoric works in tandem
with cognitive science. The blend with cognitive science is even more appropriate
given contemporary rhetoricians’ broader definition of “rhetoric” as the study of all
the ways in which humans use symbols to communicate. (Foss et al. 2002). Though
not yet the prevailing view, the potentially rich relationship of rhetoric and cognitive
psychology is recognized by experts. Some authors claim that much of social psychol-
ogy can be viewed as an effort to empirically test classical rhetorical concepts. (Billig
1996). Moreover, research into the psychology of persuasion has been described as the
new rhetoric (Brewster Smith 1981), and Aristotle has been called the “world’s first
published social psychologist.” (Aronson 2011).
Expanding the cognitive science explanation that human thinking is primarily a
matter of categorizing, the rhetorical perspective values both the ability to analogize
(and categorize) and the ability to differentiate (and particularize). Both strategies are
essential if we are to engage in argument. While cognitive social psychologists suggest
that we need to categorize in order to simplify, rhetoricians recognize that we need to
be able to differentiate and particularize in order to manage the complexities of indi-
vidual situations. Fortunately, any new bit of information can be considered either as a
potential particularity or as a potential member of a category. For example, the govern-
ment official who usually follows a standard routine to process individual requests may
treat an otherwise run-of-the-mill request with particularity when the request is made
by a relative or friend or when it will involve an unusually large financial gain.
From this rhetorical perspective, human thinking develops not by information
processing – as the computer model suggests – but in a more complex and recursive
way through direct interactions between the human thinker and the world. (Epstein
2016; Searle 1990). Recursively, individual thinkers move back and forth between cat-
egories and particular instances. (Billig 1996). Thinking’s main component becomes
“a form of internal argument, modeled on outward dialogue.” In this view, thinking
follows Protagoras’s direction that for every question there are (at least) two opposite
answers. From there, the crucial rhetorical activities can be seen as justification of one
position and criticism of another. And for the rhetorician, these rhetorical activities can
be understood only within the context of an individual situation.
Cognitive scientists and rhetoricians agree that selection – whether conscious or
not – is involved in thinking. Sometimes selection appears to be an efficient shortcut;
at other times, it takes the form of a destructive cognitive bias. Either way, selection
is inevitable because our capacity to perceive can never encompass the entire picture.
Our ability to explain and describe falls short of the full story. Some things must always
be brightly lit, and others eclipsed. Moreover, according to Michael Billig, when-
ever selection is involved, we are already engaged in particularization because we are
treating one category out of many categories as being uniquely appropriate. So “our
basic cognitive processes [do not] merely function to provide psychological stability
and order. They also provide the seeds of argumentation and deliberation.” (Billig
1996). When, for example, we notice a stranger in our neighborhood, we sort through
and select among many possible categories into which she might fit, using only the
Another random document with
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elected to Congress and was re-elected in 1804. In 1805, he was
appointed United States District Judge for the new Territory of
Louisiana, now the State of Missouri.
Dr. Felix Brunot arrived in Pittsburgh in 1797. He came from
France with Lafayette and was a surgeon in the Revolutionary War
and fought in many of its battles. His office was located on Liberty
Street, although he owned and lived on Brunot Island. An émigré,
66
the Chevalier Dubac, was a merchant. Dr. F. A. Michaux, the
67
French naturalist and traveler, related of Dubac: “I frequently saw
M. Le Chevalier Dubac, an old French officer who, compelled by the
events of the Revolution to quit France, settled in Pittsburgh where
he engaged in commerce. He possesses very correct knowledge of
the Western country, and is perfectly acquainted with the navigation
of the Ohio and Mississippi Rivers, having made several voyages to
New Orleans.” Morgan Neville a son of Colonel Presley Neville, and
a writer of acknowledged ability, drew a charming picture of Dubac’s
68
life in Pittsburgh.
Perhaps the best known Frenchman in Pittsburgh was John
Marie, the proprietor of the tavern on Grant’s Hill. Grant’s Hill was the
eminence which adjoined the town on the east, the ascent to the hill
beginning a short distance west of Grant Street. The tavern was
located just outside of the borough limits, at the northeast corner of
Grant Street and the Braddocksfield Road, where it connected with
Fourth Street. The inclosure contained more than six acres, and was
called after the place of its location, “Grant’s Hill.” It overlooked
Pittsburgh, and its graveled walks and cultivated grounds were the
resort of the townspeople. For many years it was the leading tavern.
Gallatin, who was in Pittsburgh, in 1787, while on the way from New
Geneva to Maine, noted in his diary that he passed Christmas Day at
69
Marie’s house, in company with Brackenridge and Peter Audrian, a
well-known French merchant on Water Street. Marie’s French
nationality naturally led him to become a Republican when the party
was formed, and his tavern was long the headquarters of that party.
Numerous Republican plans for defeating their opponents originated
in Marie’s house, and many Republican victories were celebrated in
his rooms. Also in this tavern the general meetings of the militia
70
officers were held. Michaux has testified that Marie kept a good
71
inn. The present court house, the combination court house and city
hall now being erected, and a small part of the South School, the first
public school in Pittsburgh, occupy the larger portion of the site of
“Grant’s Hill.”
Marie’s name became well known over the State, several years
after he retired to private life. He was seventy-five years of age in
1802, when he discontinued tavern-keeping and sold “Grant’s Hill” to
James Ross, United States Senator from Pennsylvania, who was a
resident of Pittsburgh. Marie had been estranged from his wife for a
number of years and by some means she obtained possession of
“Grant’s Hill,” of which Ross had difficulty in dispossessing her. In
1808, Ross was a candidate for governor against Simon Snyder.
Ross’s difference with Mrs. Marie, whose husband had by this time
divorced her, came to the knowledge of William Duane in
Philadelphia, the brilliant but unscrupulous editor of the Aurora since
the discontinuance of the National Gazette, in 1793, the leading
radical Republican newspaper in the country. The report was
enlarged into a scandal of great proportions both in the Aurora and in
a pamphlet prepared by Duane and circulated principally in
Philadelphia. The title of the pamphlet was harrowing. It was called
“The Case of Jane Marie, Exhibiting the Cruelty and Barbarous
Conduct of James Ross to a Defenceless Woman, Written and
Published by the Object of his Cruelty and Vengeance.” Although
Marie was opposed to Ross politically, he defended his conduct
toward Mrs. Marie as being perfectly honorable. Nevertheless, the
pamphlet played an important part in obtaining for Snyder the
majority of twenty-four thousand by which he defeated Ross.
Notwithstanding the high positions which some of the
Frenchmen attained, they left no permanent impression in
Pittsburgh. After prospering there for a few years, they went away
and no descendants of theirs reside in the city unless it be some of
the descendants of Dr. Brunot. Some went south to the Louisiana
country, and others returned to France. Gallatin, himself, long after
he had shaken the dust of Western Pennsylvania from his feet,
writing about his grandson, the son of his son James, said: “He is the
only young male of my name, and I have hesitated whether, with a
view to his happiness, I had not better take him to live and die quietly
at Geneva, rather than to leave him to struggle in this most energetic
country, where the strong in mind and character overset everybody
else, and where consideration and respectability are not at all in
72
proportion to virtue and modest merit.” And the grandson went to
73
Geneva to live, and his children were born there and he died there.
The United States Government was still in the formative stage.
Until this time the men who had fought the Revolutionary War to a
successful conclusion, held a tight rein on the governmental
machinery. Now a new element was growing up, and, becoming
dissatisfied with existing conditions, organized for a conflict with the
men in power. The rise of the opposition to the Federal party was
also the outcome of existing social conditions. Like the modern cry
against consolidated wealth, the movement was a contest by the
discontented elements in the population, of the men who had little
against those who had more. Abuses committed by individuals and
conditions common to new countries were magnified into errors of
government. Also the people were influenced by the radicalism
superinduced by the French Revolution and the subsequent
happenings in France. “Liberty, fraternity, and equality” were enticing
catchwords in the United States.
Thomas Jefferson, on his return from France, in 1789, after an
absence of six years, where he had served as United States
Minister, during the development of French radicalism, came home
much strengthened in his ideas of liberty. They were in strong
contrast with the more conservative notions of government
entertained by Washington, Vice-President Adams, Hamilton, and
the other members of the Cabinet. In March, 1790, Jefferson
became Secretary of State in Washington’s first Cabinet, the
appointment being held open for him since April 13th of the
preceding year, when Washington entered on the duties of the
Presidency. Jefferson’s views being made public, he immediately
became the deity of the radical element. At the close of 1793, the
dissensions in the Cabinet had become so acute that on December
31st Jefferson resigned in order to be better able to lead the new
party which was being formed. By this element the Federalists were
termed “aristocrats,” and “tories.” They were charged with being
traitors to their country, and were accused of being in league with
England, and to be plotting for the establishment of a monarchy, and
an aristocracy. The opposition party assumed the title of
“Republican.” Later the word “Democratic” was prefixed and the
74
party was called “Democratic Republican,” although in Pittsburgh
for many years the words “Republican,” “Democratic Republican,”
and “Democratic” were used interchangeably.
Heretofore Pennsylvania had been staunchly Federal. On the
organization of the Republican party, Governor Thomas Mifflin, and
Chief Justice Thomas McKean of the Supreme Court, the two most
popular men in the State, left the Federal party and became
Republicans. There was also a cause peculiar to Pennsylvania, for
the rapid growth of the Republican party in the State. The constant
increase in the backwoods population consisted largely of emigrants
from Europe, chiefly from Ireland, who brought with them a bitter
hatred of England and an intense admiration for France. They went
almost solidly into the Republican camp. The arguments of the
Republicans had a French revolutionary coloring mingled with which
were complaints caused by failure to realize expected conditions. An
address published in the organ of the Republican party in Pittsburgh
is a fair example of the reasoning employed in advocacy of the
Republican candidates: “Albert Gallatin, the friend of the people, the
enemy of tyrants, is to be supported on Tuesday, the 14th of October
next, for the Congress of the United States. Fellow citizens, ye who
are opposed to speculators, land jobbers, public plunderers, high
taxes, eight per cent. loans, and standing armies, vote for Mr.
75
Gallatin!”
In Pittsburgh the leader of the Republicans was Hugh Henry
Brackenridge, the lawyer and dilettante in literature. In the fierce
invective of the time, he and all the members of his party were styled
by their opponents “Jacobins,” after the revolutionary Jacobin Club of
France, to which all the woes of the Terror were attributed. The
Pittsburgh Gazette referred to Brackenridge as “Citizen
Brackenridge,” and after the establishment of the Tree of Liberty,
added “Jacobin printer of the Tree of Sedition, Blasphemy, and
76
Slander.” But the Republicans gloried in titles borrowed from the
French Revolution. The same year that Governor Mifflin and Chief
Justice McKean went over to the Republicans, Brackenridge made a
Fourth of July address in Pittsburgh, in which he advocated closer
relations with France. This was republished in New York by the
Republicans, in a pamphlet, along with a speech made by
Maximilien Robespierre in the National Convention of France. In this
77
pamphlet Brackenridge was styled “Citizen Brackenridge.” The
Pittsburgh Gazette and the Tree of Liberty, contained numerous
references to meetings and conferences held at the tavern of
“Citizen” Marie. On March 4, 1802, the first anniversary of the
inauguration of Jefferson as President, a dinner was given by the
leading Republicans in the tavern of “Citizen” Jeremiah Sturgeon, at
the “Sign of the Cross Keys,” at the northwest corner of Wood Street
and Diamond Alley, at which toasts were drunk to “Citizen” Thomas
Jefferson, “Citizen” Aaron Burr, “Citizen” James Madison, “Citizen”
78
Albert Gallatin, and “Citizen” Thomas McKean.
In 1799, the Republicans had as their candidate for governor
Chief Justice McKean. Opposed to him was Senator James Ross.
Ross was required to maintain a defensive campaign. The fact that
he was a Federalist was alone sufficient to condemn him in the eyes
of many of the electors. He was accused of being a follower of
Thomas Paine, and was charged with “singing psalms over a card
table.” It was said that he had “mimicked” the Rev. Dr. John
McMillan, the pioneer preacher of Presbyterianism in Western
Pennsylvania, and a politician of no mean influence; that he had
“mocked” the Rev. Matthew Henderson, a prominent minister of the
79
Associate Presbyterian Church. Although Allegheny County gave
Ross a majority of over eleven hundred votes, he was defeated in
80
the State by more than seventy-nine hundred. McKean took office
 81
on December 17, 1799, and the next day he appointed
Brackenridge a justice of the Supreme Court. All but one or two of
the county offices were filled by appointment of the governor, who
could remove the holders at pleasure. The idea of public offices
being public trusts had not been formulated. The doctrine afterward
attributed to Andrew Jackson, that “to the victors belong the spoils of
office,” was already a dearly cherished principle of the Republicans,
and Judge Brackenridge was not an exception to his party. Hardly
had he taken his seat on the Supreme Bench, when he induced
Governor McKean to remove from office the Federalist prothonotary,
James Brison, who had held the position since September 26, 1788,
two days after the organization of the county.
Brison was very popular. As a young man, he had lived at
Hannastown, and during the attack of the British and Indians on the
place had been one of the men sent on the dangerous errand of
82
reconnoitering the enemy. He was now captain of the Pittsburgh
Troop of Light Dragoons, the crack company in the Allegheny County
brigade of militia, and was Secretary of the Board of Trustees of the
Academy. He was a society leader and generally managed the larger
social functions of the town. General Henry Lee, the Governor of
Virginia, famous in the annals of the Revolutionary War, as “Light-
Horse Harry Lee,” commanded the expedition sent by President
Washington to suppress the Whisky Insurrection, and was in
Pittsburgh several weeks during that memorable campaign. On the
eve of his departure a ball was given in his honor by the citizens. On
that occasion Brison was master of ceremonies. A few months
earlier Brackenridge had termed him “a puppy and a coxcomb.”
Brackenridge credited Brison with retaliating for the epithet, by
neglecting to provide his wife and himself with an invitation to the
ball. This was an additional cause for his dismissal, and toward the
close of January the office was given to John C. Gilkison. Gilkison
who was a relative of Brackenridge, conducted the bookstore and
library which he had opened the year before, and also followed the
occupation of scrivener, preparing such legal papers as were
83
demanded of him.
 REFERENCES
Chapter III

58
Pittsburgh Gazette, January 23, 1801.
59
Collinson Read. An Abridgment of the Laws of
Pennsylvania, Philadelphia, MDCCCI, pp. 264–269.
60
Pittsburgh Gazette, December 7, 1799.
61
Neville B. Craig. The Olden Time, Pittsburgh, 1848, vol. ii.,
pp. 354–355.
62
A Brief State of the Province of Pennsylvania, London,
1755, p. 12.
63
Tree of Liberty, December 27, 1800.
64
John Austin Stevens. Albert Gallatin, Boston, 1895, p.
370.
65
Major Ebenezer Denny. Military Journal, Philadelphia,
1859, p. 21.
66
Pittsburgh Gazette, October 23, 1801.
67
Dr. F. A. Michaux. Travels to the Westward of the Alleghany
Mountains in the Year 1802, London, 1805, p. 36.
68
Morgan Neville. In John F. Watson’s Annals of
Philadelphia and Pennsylvania, Philadelphia, 1891, vol.
ii., pp. 132–135.
69
Henry Adams. The Life of Albert Gallatin, Philadelphia,
1880, p. 68.
70
Tree of Liberty, November 7, 1800; Pittsburgh Gazette,
February 20, 1801.
71
Dr. F. A. Michaux. Travels to the Westward of the Alleghany
Mountains in the Year 1802, London, 1805, p. 29.
72
Henry Adams. The Life of Albert Gallatin, Philadelphia,
1880, p. 650.
73
Count De Gallatin. “A Diary of James Gallatin in Europe”;
Scribner’s Magazine, New York, vol. lvi., September,
1914, pp. 350–351.
74
Richard Hildreth. The History of the United States of
America, New York, vol. iv., p. 425.
75
Tree of Liberty, September 27, 1800.
76
Pittsburgh Gazette, February 6, 1801.
77
Political Miscellany, New York, 1793, pp. 27–31.
78
Tree of Liberty, March 13, 1802.
79
Tree of Liberty, September 19, 1801.
80
Pittsburgh Gazette, October 26, 1799.
81
William C. Armor. Lives of the Governors of Pennsylvania,
Philadelphia, 1873, p. 289.
82
Neville B. Craig. The Olden Time, Pittsburgh, 1848, vol. ii.,
p. 355.
83
H. M. Brackenridge. Recollections of Persons and Places
in the West, Philadelphia, 1868, p. 68; Pittsburgh
Gazette, December 29, 1798.
 CHAPTER IV
LIFE AT THE BEGINNING OF THE NINETEENTH
CENTURY

The Pittsburgh Gazette was devoted to the interests of the

Federal party, and Brackenridge and the other leading Republicans
felt the need of a newspaper of their own. The result was the
establishment on August 16, 1800, of the Tree of Liberty, by John
Israel, who was already publishing a newspaper, called the Herald of
Liberty, in Washington, Pennsylvania. The title of the new paper was
intended to typify its high mission. The significance of the name was
further indicated in the conspicuously displayed motto, “And the
leaves of the tree were for the healing of the nations.” The
Federalists, and more especially their organ, the Pittsburgh
84
Gazette, charged Brackenridge with being the owner of the new
paper, and with being responsible for its utterances. Brackenridge,
however, has left a letter in which he refuted this statement, and
alleged that originally he intended to establish a newspaper, but on
85
hearing of Israel’s intention gave up the idea.
The extent of the comforts and luxuries enjoyed in Pittsburgh
was surprising. The houses, whether built of logs, or frame, or brick,
were comfortable, even in winter. In the kitchens were large open
fire-places, where wood was burned. The best coal fuel was plentiful.
Although stoves were invented barely half a century earlier, and
were in general use only in the larger cities, the houses in Pittsburgh
could already boast of many. There were cannon stoves, so called
because of their upright cylindrical, cannon-like shape, and Franklin
or open stoves, invented by Benjamin Franklin; the latter graced the
parlor. Grates were giving out their cheerful blaze. They were also in
use in some of the rooms of the new court house, and in the new jail.
The advertisements of the merchants told the story of what the
people ate and drank, and of the materials of which their clothing
was made. Articles of food were in great variety. In the stores were
tea, coffee, red and sugar almonds, olives, chocolate, spices of all
kinds, muscatel and keg raisins, dried peas, and a score of other
luxuries, besides the ordinary articles of consumption. The gentry of
England, as pictured in the pages of the old romances, did not have
a greater variety of liquors to drink. There were Madeira, sherry,
claret, Lisbon, port, and Teneriffe wines, French and Spanish
86 87
brandies, Jamaica and antique spirits. Perrin DuLac, who visited
Pittsburgh in 1802, said these liquors were the only articles sold in
88
the town that were dear. But not all partook of the luxuries. Bread
and meat, and such vegetables as were grown in the neighborhood,
constituted the staple articles of food, and homemade whisky was
the ordinary drink of the majority of the population. The native fruits
were apples and pears, which had been successfully propagated
89
since the early days of the English occupation.
Materials for men’s and women’s clothing were endless in variety
and design and consisted of cloths, serges, flannels, brocades,
jeans, fustians, Irish linens, cambrics, lawns, nankeens, ginghams,
muslins, calicos, and chintzes. Other articles were tamboured
petticoats, tamboured cravats, silk and cotton shawls, wreaths and
plumes, sunshades and parasols, black silk netting gloves, white and
salmon-colored long and short gloves, kid and morocco shoes and
slippers, men’s beaver, tanned, and silk gloves, men’s cotton and
thread caps, and silk and cotton hose.
Men were changing their dress along with their political opinions.
One of the consequences in the United States of the French
Revolution was to cause the effeminate and luxurious dress in
general use to give way to simpler and less extravagant attire. The
rise of the Republican party and the class distinctions which it was
responsible for engendering, more than any other reason, caused
the men of affairs—the merchants, the manufacturers, the lawyers,
the physicians, and the clergymen—to discard the old fashions and
adopt new ones. Cocked hats gave way to soft or stiff hats, with low
square crowns and straight brims. The fashionable hats were the
beaver made of the fur of the beaver, the castor made of silk in
imitation of the beaver, and the roram made of felt, with a facing of
beaver fur felted in. Coats of blue, green, and buff, and waistcoats of
crimson, white, or yellow, were superseded by garments of soberer
colors. Coats continued to be as long as ever, but the tails were cut
away in front. Knee-breeches were succeeded by tight-fitting
trousers reaching to the ankles; low-buckled shoes, by high-laced
leather shoes, or boots. Men discontinued wearing cues, and their
hair was cut short, and evenly around the head. There were of
course exceptions. Many men of conservative temperament still
clung to the old fashions. A notable example in Pittsburgh was the
Rev. Robert Steele, who always appeared in black satin knee-
90
breeches, knee-buckles, silk stockings, and pumps.
The farmers on the plantations surrounding Pittsburgh and the
mechanics in the borough were likewise affected by the movement
for dress reform. Their apparel had always been less picturesque
than that of the business and professional men. Now the ordinary
dress of the farmers and mechanics consisted of short tight-fitting
round-abouts, or sailor’s jackets, made in winter of cloth or linsey,
and in summer of nankeen, dimity, gingham, or linen. Sometimes the
jacket was without sleeves, the shirt being heavy enough to afford
protection against inclement weather. The trousers were loose-fitting
and long, and extended to the ankles, and were made of nankeen,
tow, or cloth. Some men wore blanket-coats. Overalls, of dimity,
nankeen, and cotton, were the especial badge of mechanics. The
shirt was of tow or coarse linen, the vest of dimity. On their feet,
farmers and mechanics alike wore coarse high-laced shoes, half-
boots, or boots made of neat’s leather. The hats were soft, of fur or
wool, and were low and round-crowned, or the crowns were high and
square.
The inhabitants of Pittsburgh were pleasure-loving, and the time
not devoted to business was given over to the enjoyments of life.
Men and women alike played cards. Whisk, as whist was called, and
 91
Boston were the ordinary games. All classes and nationalities
danced, and dancing was cultivated as an art. Dancing masters
came to Pittsburgh to give instructions, and adults and children alike
took lessons. In winter public balls and private assemblies were
given. The dances were more pleasing to the senses than any ever
seen in Pittsburgh, except the dances of the recent revival of the art.
The cotillion was executed by an indefinite number of couples, who
performed evolutions or figures as in the modern german. Other
dances were the minuet, the menuet à la cour, and jigs. The country
dance, generally performed by eight persons, four men and four
women, comprised a variety of steps, and a surprising number of
evolutions, of which liveliness was the characteristic.
The taverns had rooms set apart for dances. The “Sign of the
92
Green Tree,” had an “Assembly Room”; the “Sign of General
93 94
Butler” and the “Sign of the Waggon” each had a “Ball Room.”
The small affairs were given in the homes of the host or hostess, and
the large ones in the taverns, or in the grand-jury room of the new
court house.
The dancing masters gave “Practicing Balls” at which the
cotillion began at seven o’clock, and the ball concluded with the
95
country dance, which was continued until twelve o’clock. Dancing
became so popular and to such an extent were dancing masters in
the eyes of the public that William Irwin christened his race horse
96
“Dancing Master.” The ball given to General Lee was talked about
for years after the occurrence. Its beauties were pictured by many
fair lips. The ladies recalled the soldierly bearing of the guest of
honor, the tall robust form of General Daniel Morgan, Lee’s second
in command, and the commander of the Virginia troops, famous as
the hero of Quebec and Saratoga, who had received the thanks of
Congress for his victory at Cowpens. They dwelt on the varicolored
uniforms of the soldiers, the bright colors worn by the civilians, their
powdered hair, the brocades, and silks, and velvets of the ladies.
In winter evenings there were concerts and theatrical
performances which were generally given in the new court house. A
unique concert was that promoted by Peter Declary. It was heralded
as a musical event of importance. Kotzwara’s The Battle of Prague,
was performed on the “forte piano” by one of Declary’s pupils,
advertised as being only eight years of age; President Jefferson’s
march was another conspicuous feature. The exhibition concluded
97
with a ball.
Comedy predominated in the theatrical performances. The
players were “the young gentlemen of the town.” At one of the
entertainments they gave John O’Keefe’s comic opera The Poor
98
Soldier, and a farce by Arthur Murphy called The Apprentice.
There were also performances of a more professional character.
Bromley and Arnold, two professional actors, conducted a series of
theatrical entertainments extending over a period of several weeks.
The plays which they rendered are hardly known to-day. At a single
99
performance they gave a comedy entitled Trick upon Trick, or The
Vintner in the Suds; a farce called The Jealous Husband, or The
Lawyer in the Sack; and a pantomime, The Sailor’s Landlady, or
Jack in Distress. Another play in the series was Edward Moore’s
100
tragedy, The Gamester.
Much of Grant’s Hill was unenclosed. Clumps of trees grew on
its irregular surface, and there were level open spaces; and in
summer the place was green with grass, and bushes grew in
profusion. Farther in the background were great forest trees. The hill
was the pleasure ground of the village. Judge Henry M.
Brackenridge, a son of Judge Hugh Henry Brackenridge dwelling on
the past, declared that “it was pleasing to see the line of well-
dressed ladies and gentlemen and children, ... repairing to the
101
beautiful green eminence.” On this elevation “under a bower, on
the margin of a wood, and near a delightful spring, with the town of
102
Pittsburgh in prospect,” the Fourth of July celebrations were held.
On August 2, 1794, the motley army of Insurgents from
Braddocksfield rested there, after having marched through the town.
Here they were refreshed with food and whisky, in order that they
103
might keep in good humor, and to prevent their burning the town.
Samuel Jones has left an intimate, if somewhat regretful account
of the early social life of Pittsburgh. “The long winter evenings,” he
wrote, “were passed by the humble villagers at each other’s homes,
with merry tale and song, or in simple games; and the hours of night
sped lightly onward with the unskilled, untiring youth, as they
threaded the mazes of the dance, guided by the music of the violin,
from which some good-humored rustic drew his Orphean sounds. In
the jovial time of harvest and hay-making, the sprightly and active of
the village participated in the rural labors and the hearty pastimes,
which distinguished that happy season. The balls and merry-
makings that were so frequent in the village were attended by all
without any particular deference to rank or riches. No other etiquette
than that which natural politeness prescribed was exacted or
expected.... Young fellows might pay their devoirs to their female
acquaintances; ride, walk, or talk with them, and pass hours in their
society without being looked upon with suspicion by parents, or
104
slandered by trolloping gossips.”
The event of autumn was the horse races, which lasted three
days. They were held in the northeasterly extremity of the town
105
between Liberty Street and the Allegheny River, and were
conducted under the auspices of the Jockey Club which had been in
existence for many years. Sportsmen came from all the surrounding
country. The races were under the saddle, sulkies not having been
invented. Racing proprieties were observed, and jockeys were
106
required to be dressed in jockey habits. Purses were given. The
horses compared favorably with race horses of a much later day. A
prominent horse was “Young Messenger” who was sired by
“Messenger,” the most famous trotting horse in America, which had
been imported into Philadelphia from England in 1788, and was the
progenitor of Rysdyk’s Hambletonian, Abdallah, Goldsmith Maid, and
a score of other noted race horses.
 A third of a century after the race course had been removed
beyond the limits of the municipality, Judge Henry M. Brackenridge
published his recollections of the entrancing sport. “It was then an
affair of all-engrossing interest, and every business or pursuit was
neglected.... The whole town was daily poured forth to witness the
Olympian games.... The plain within the course and near it was filled
with booths as at a fair, where everything was said, and done, and
sold, and eaten or drunk, where every fifteen or twenty minutes there
was a rush to some part, to witness a fisticuff—where dogs barked
and bit, and horses trod on men’s toes, and booths fell down on
107
people’s heads!”
The social instincts of the people found expression in another
direction. The Revolutionary War, the troubles with the Indians, the
more or less strained relations existing between France and
England, had combined to inbreed a military spirit. Pennsylvania,
with a population, in 1800, of 602,365, had enrolled in the militia
88,707 of its citizens. The militia was divided into light infantry,
108
riflemen, grenadiers, cavalry, and artillery. Allegheny County had
109
a brigade of militia, consisting of eight regiments. The
commander was General Alexander Fowler, an old Englishman who
had served in America, in the 18th, or Royal Irish, Regiment of Foot.
On the breaking out of the Revolutionary War, he had resigned his
commission on account of his sympathy with the Americans. Being
unfit for active service, Congress appointed him Auditor of the
Western Department at Pittsburgh.
The militia had always been more or less permeated with
partisan politics. During the Revolution the American officers wore a
cockade with a black ground and a white relief, called the black
cockade. This the Federalists had made their party emblem. The
Republican party, soon after its organization, adopted as a badge of
party distinction a cockade of red and blue on a white base, the
colors of revolutionary France. The red and blue cockade thereafter
became the distinguishing mark of the majority of the Pennsylvania
militia, being adopted on the recommendation of no less a person
than Governor McKean. General Fowler’s advocacy of the red and
blue cockade and his disparagement of the black cockade were
incessant. He was an ardent Republican, and his effusions with their
classic allusions filled many columns of the Tree of Liberty and the
Pittsburgh Gazette. At a meeting of the Allegheny County militia held
at Marie’s tavern, the red and blue cockade had been adopted.
Fowler claimed that this was the result of public sentiment. He was
fond of platitudes. “The voice of the people is the voice of God,” he
quoted, crediting the proverb to an “English commentator,” and
adding: “Says a celebrated historian, ‘individuals may err, but the
110
voice of the people is infallible.’” A strong minority in Allegheny
County remained steadfast to the Federal party, and the vote in favor
of the adoption of the red and blue cockade was not unanimous. Two
of the regiments, not to be engulfed in the growing wave of
Republicanism, or overawed by the domineering disposition of
General Fowler, opposed the adoption of the red and blue cockade,
111
and chose the black cockade.
The equipment furnished to the militia by the State was meagre,
but the patriotism which had so lately won the country’s
independence was still at flood tide, and each regiment was supplied
with two silk standards. One was the national flag, the other the
regimental colors. The national emblem differed somewhat from the
regulation United States flag. The word “Pennsylvania” appeared on
the union, with the number of the regiment, the whole being
encircled by thirteen white stars. The fly of the regimental colors was
dark blue; on this was painted an eagle with extended wings
supporting the arms of the State. The union was similar to that of the
national flag. The prescribed uniform which many of the men,
however, did not possess, was a blue coat faced with red, with a
lining of white or red. In Allegheny County a round hat with the
112
cockade and buck’s tail, was worn. The parade ground of the
militia was the level part of Grant’s Hill which adjoined Marie’s tavern
on the northeast. Here twice each year, in April and October, the
militia received its training. Of no minor interest, was the social life
enjoyed by officers and men alike, during the annual assemblages.
 In the territory contiguous to Pittsburgh the uprising, for the right
to manufacture whisky without paying the excise, had its inception.
That taverns should abound in the town was a natural consequence.
In 1808 the public could be accommodated at twenty-four different
113
taverns. The annual license fee for taverns, including the clerk’s
charges, was barely twenty dollars. Through some mental
legerdemain of the lawmakers it had been enacted that if more than
a quart was sold no license was required. Liquors, and particularly
whisky, were sold in nearly every mercantile establishment. Also
beer had been brewed in Pittsburgh since an early day, at the “Point
114
Brewery,” which was purchased in 1795 by Smith and Shiras.
Beer was likewise brewed in a small way by James Yeaman, two or
115
three years later. In February, 1803, O’Hara and Coppinger, who
had acquired the “Point Brewery,” began brewing beer on a larger
116
scale.
In the taverns men met to consummate their business, and to
discuss their political and social affairs. Lodge No. 45 of Ancient York
Masons met in the taverns for many years, as did the Mechanical
Society. Even the Board of Trustees of the Academy held their
117
meetings there. Religion itself, looked with a friendly eye on the
taverns. In the autumn of 1785, the Rev. Wilson Lee, a Methodist
missionary, appeared in Pittsburgh, and preached in John Ormsby’s
118 119
tavern, on Water Street, at his ferry landing, at what is now the
northeast corner of that street and Ferry Street. This was the same
double log house which, while conducted by Samuel Semple, was in
120
1770 patronized by Colonel George Washington.
Tavern keeping and liquor selling were of such respectability that
many of the most esteemed citizens were, or had been tavern-
keepers, or had sold liquors, or distilled whisky, or brewed beer.
Jeremiah Sturgeon was a member of the session of the Presbyterian
121
Church. John Reed, the proprietor of the “Sign of the Waggon,” in
addition to being a leading member of the Jockey Club, and the
122
owner of the race horse “Young Messenger,” was precentor in the
Presbyterian Church, and on Sundays “lined out the hymns” and led
123
the singing. The pew of William Morrow is marked on the diagram
of the ground-plan of the church as printed in its Centennial
124
Volume. The “Sign of the Cross Keys,” the emblem of Sturgeon’s
tavern, was of religious origin and was much favored in England.
Although used by a Presbyterian, it was the arms of the Papal See,
and the emblem of St. Peter and his successors. That the way to
salvation lay through the door of the tavern, would seem to have
been intended to be indicated by the “Sign of the Cross Keys.”
William Eichbaum, a pillar in the German church, after he left the
employ of O’Hara and Craig, conducted a tavern on Front Street,
near Market, at the “Sign of the Indian Queen.” The owners of the
ferries kept taverns in connection with their ferries. Ephraim Jones
conducted a tavern at his ferry landing on the south side of the
Monongahela River; Robert Henderson had a tavern on Water Street
at his ferry landing; Samuel Emmett kept a tavern at his landing on
the south side of the Monongahela River; and James Robinson had
a tavern on the Franklin Road at the northerly terminus of his
125
ferry.
Drinking was universal among both men and women. Judge
James Veech declared that whisky “was the indispensable emblem
of hospitality and the accompaniment of labor in every pursuit, the
stimulant in joy and the solace in grief. It was kept on the counter of
every store and in the corner cupboard of every well-to-do family.
The minister partook of it before going to church, and after he came
back. At home and abroad, at marryings and buryings, at house
raisings and log rollings, at harvestings and huskings, it was the
omnipresent beverage of old and young, men and women; and he
was a churl who stinted it. To deny it altogether required more grace
or niggardliness than most men could command, at least for daily
126
use.”
A practical joke perpetrated by the Rev. Dr. John McMillan, on
the Rev. Joseph Patterson, another of the early ministers in this
region, illustrates the custom of drinking among the clergy. On their
way to attend a meeting of the Synod, the two men stopped at a
wayside inn and called for whisky, which was set before them. Mr.
Patterson asked a blessing which was rather lengthy. Dr. McMillan
meanwhile drank the whisky, and to Mr. Patterson’s blank look
127
remarked blandly, “You must watch as well as pray!”
Families purchased whisky and laid it away in their cellars for
future consumption, and that it might improve with age. Judge Hugh
Henry Brackenridge declared that the visit of the “Whisky Boys”—as
the Insurgents from Braddocksfield were called—to Pittsburgh cost
128
him “four barrels of old whisky.” The statement caused Henry
Adams, in his life of Albert Gallatin, to volunteer the assertion that it
nowhere appeared “how much whisky the western gentleman
129
usually kept in his house.”
There was no legislation against selling liquors on Sundays. The
only law on the subject was an old one under which persons found
drinking and tippling in ale-houses, taverns, and other public houses
on Sundays, were liable to be fined one shilling and sixpence; and
the keepers of the houses upon conviction were required to pay ten
shillings. The line of demarcation between proper and improper
drinking being faint, the law proved ineffectual to prevent drinking on
Sundays.
Religion had not kept pace with material progress. The people
had been too much engrossed in secular affairs to attend to spiritual
matters. They were withal generous, and practiced the Christian
virtues; and never failed to help their unfortunate neighbors. This
disposition was manifested in various ways. Losses by fire were of
frequent occurrence and were apt to cause distress or ruin to those
affected. In these cases the citizens always furnished relief. An
instance where this was done was in the case of William Thorn.
Thorn was a cabinet-maker on Market Street, and built windmills and
130
Dutch fans. When the house which he occupied was burned to
the ground and he lost all his tools and valuable ready-made
furniture, a liberal subscription was made by the citizens, and he was
131
enabled to again commence his business.
 But there was little outward observance of religious forms. The
Germans had made some progress in that direction. The little log
building where they worshipped had been succeeded by a brick
church. The only English church was the Presbyterian Meeting
House facing on Virgin Alley, now Oliver Avenue, erected in 1786. It
was the same building of squared timbers in which the congregation
had originally worshipped. From 1789 to 1793, the church had
languished greatly. There was no regular pastor; services were held
at irregular and widely separated intervals. Two of the men who
132
served as supplies left the ministry and became lawyers. From
1793 to 1800, the church was all but dead. The house was deserted
and falling into ruin. Only once, so far as there is any record, were
Presbyterian services held in the building during this period. It was in
1799 that the Rev. Francis Herron, passing through Pittsburgh, was
induced to deliver a sermon to a congregation consisting of fifteen or
eighteen persons “much to the annoyance of the swallows,” as
Herron ingenuously related, which had taken possession of the
133
premises.
A light had flashed momentarily in the darkness when John
Wrenshall, the father of Methodism in Pittsburgh, settled in the town.
Wrenshall was an Englishman who came to Pittsburgh in 1796 and
established a mercantile business. He was converted to
Wesleyanism in England and had been a local preacher there. As
there was no minister or preaching of any kind in Pittsburgh, he
commenced holding services in the Presbyterian Meeting House. His
audiences increased, but after a few Sundays of active effort, a
padlock was placed on the door of the church, and he was notified
that the house was no longer at his disposal. The Presbyterians
might not hold services themselves, but they would not permit the
use of their building to adherents of the new sect of Methodists, “the
offspring of the devil.”
A great religious revival swept over the Western country in the
concluding years of the eighteenth century. In Kentucky it developed
134
into hysteria, and in Western Pennsylvania the display of religious
135
fervor was scarcely less intense. The effect was felt in Pittsburgh.